Wednesday, February 12, 2020

Parents for Privacy v. Barr (9th Cir. - Feb. 12, 2020)

Judge Tashima spells out fairly accurately, I think, both the facts of this case as well as what's at stake on both sides:

"In September 2015, a student at Dallas High School who had been born and who remained biologically female publicly identified as a boy, and he asked school officials to allow him to use the boys’ bathroom and locker room. Defendant-Appellee Dallas School District No. 2 (the “District”) responded by creating and implementing a “Student Safety Plan” for the transgender boy (“Student A”) and any other transgender student who might make a similar request in the future, in order to ensure that transgender persons like Student A could safely participate in school activities.

The Plan acknowledged Student A as a “transgender male” and permitted him to use the boys’ locker room and bathroom facilities with his peers at Dallas High School.3 The Plan also provided that, while Student A had not indicated “which bathroom he feels comfortable using,” Student A could “use any of the bathrooms in the building to which he identifies sexually.” In addition, to ensure Student A’s safety, the Student Safety Plan provided that all staff would receive training and instruction regarding Title IX, that teachers would teach about anti-bullying and harassment, that the Physical Education (“PE”) teacher would be first to enter and last to leave the locker room, and that Student A’s locker would be in direct line of sight of the PE teacher in the coach’s office. The Student Safety Plan also listed several “Safe Adults” with whom Student A could share any concerns.

Student A began using the boys’ locker room and changing clothes “while male students were present.” This caused several cisgender boys “embarrassment, humiliation, anxiety, intimidation, fear, apprehension, and stress,” because they had to change clothes for their PE class and attend to their needs while someone who had been assigned the opposite sex at birth was present.4 Although privacy stalls were available in the bathrooms, these were insufficient to alleviate the cisgender boys’ fear of exposing themselves to Student A, because the stalls had gaps through which “partially unclothed bodies” could “inadvertently” be seen. And an available single-user bathroom was often inconvenient or was considered inferior because it lacked a shower. As a consequence of their fear of exposure to Student A, some cisgender boys began using the restroom as little as possible while at school, and others risked tardiness by using distant restrooms during passing periods in order to try to find a restroom in which Student A was unlikely to be present.

When parents and other students in the Dallas community became aware of the Student Safety Plan, many opposed it publicly at successive school board meetings, in an effort to dissuade the District from implementing the policy. Some parents in the District are concerned and anxious about the prospect of their children using locker rooms or bathrooms together with a student who was assigned the opposite biological sex at birth. The Student Safety Plan also interferes with some parents’ preferred moral and/or religious teaching of their children concerning modesty and nudity. In addition, several cisgender girls suffered from stress and anxiety as a result of their fear that a transgender girl student who remains biologically male would be allowed to use the girls’ locker room and bathroom. Girls had the option of changing in the nurse’s office, but it was on the other side of the school."

Yep.  We're dealing with kids, and nudity, and discomfort.  On both sides.  In the world and culture in which we currently persist, there's no easy or totally perfect solution.  Sure, you can imagine a world and culture in which this isn't a problem.  But we're not there.  Yet, certainly.

Just as his statement of facts seems fair, balanced and accurate, so too is the Ninth Circuit's holding.  Concisely stated in the opening paragraphs of Judge Tashima's opinion:

"This case concerns whether an Oregon public school district may allow transgender students to use school bathrooms, locker rooms, and showers that match their gender identity rather than the biological sex they were assigned at birth. Plaintiffs oppose the school district’s policy, asserting that it violates Title IX, as well as the constitutional rights—including the right to privacy, the parental right to direct the education and upbringing of one’s children, and the right to freely exercise one’s religion—of students and of parents of students in the school district. Defendants and many amici highlight the importance of the policy for creating a safe, non-discriminatory school environment for transgender students that avoids the detrimental physical and mental health effects that have been shown to result from transgender students’ exclusion from privacy facilities that match their gender identities.

It is clear that this case touches on deeply personal issues about which many have strong feelings and beliefs. Moreover, adolescence and the bodily and mental changes it brings can be difficult for students, making bodily exposure to other students in locker rooms a potential source of anxiety—and this is particularly true for transgender students who experience gender dysphoria. School districts face the difficult task of navigating varying student (and parent) beliefs and interests in order to foster a safe and productive learning environment, free from discrimination, that accommodates the needs of all students. At the outset, we note that it is not our role to pass judgment on the school district’s policy or on how the school district can best fulfill its duty as a public educational institution. We are asked only to resolve whether the school district’s policy violates Title IX or Plaintiffs’ constitutional rights.

In a thorough and well-reasoned opinion, the district court dismissed the federal causes of action against the school district for failure to state a claim upon which relief can be granted. Parents for Privacy v. Dallas Sch. Dist. No. 2, 326 F. Supp. 3d 1075 (D. Or. 2018). We agree with the district court and hold that there is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth. We also hold that a policy that treats all students equally does not discriminate based on sex in violation of Title IX, and that the normal use of privacy facilities does not constitute actionable sexual harassment under Title IX just because a person is transgender. We hold further that the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it. Finally, we hold that the school district’s policy is rationally related to a legitimate state purpose, and does not infringe Plaintiffs’ First Amendment free exercise rights because it does not target religious conduct. Accordingly, we affirm the district court’s dismissal with prejudice of the action."

With respect to those that disagree (and I know there are many), the world's a better place with school policies like this one.  As well as with holdings like the one here.

They're consistent with the better parts of our world and who we are (or might eventually be).